SEMIEN v. LIFE INSURANCE COMPANY OF NORTH AMERICA

KATHLEEN SEMIEN, Plaintiff,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA, a CIGNA COMPANY, and BP LONG TERM DISABILITY (LTD) PLAN, Defendant.

The opinion of the court was delivered by: CHARLES KOCORAS, District Judge

MEMORANDUM OPINION

This matter comes before the court on the parties'
cross-motions for summary judgment. For the reasons set forth
below, the plaintiff's motion for summary judgment is denied and
the defendants' motion for summary judgment is granted.

BACKGROUND

Plaintiff Kathleen Semien is a former employee of BP Amoco, the
administrator of Defendant BP Long Term Disability Plan ("the
Plan"). Defendant Life Insurance Company of North America
("LINA") administers claims made to the Plan for disability
benefits. Over the time period at issue in the case, Semien
received treatment from her primary care physician, two
psychiatrists, two hepatologists, a gastroenterologist, a
rheumatologist, a pain specialist, and a neurosurgeon. Not
surprisingly, the team of doctors attending to Semien's care generated an extensive amount
of medical information. Though the story they tell is not
completely consistent, we summarize a brief chronology here to
give an overall flavor of Semien's diagnoses.

In May 2000, Semien began treatment for hepatitis C with a
hepatologist named Dr. Conjeevaram. In June 2000, she underwent a
cardiologic stress test, which revealed normal heart function
though the test stopped short because of Semien's fatigue. In
November 2000, Semien began her disability leave, describing her
condition as hepatitis C, fatigue, anemia, headaches, nausea,
chronic low back pain, muscle pain, rash, hypothyroidism, chronic
depression, irritable bowel syndrome, hair loss, mental
confusion, and sleep disorder.*fn1

In April 2001, Dr. Conjeevaram conducted a basic skills
assessment for Semien and concluded that she could perform basic
activities for less than 1/3 of an 8-hour workday. In July, Dr.
Te, Semien's second hepatologist recorded improvement in her
performance, including an ability to process sensory information,
reach at desk level, and perform fine manipulation for 2/3 to all
of an 8-hour work day. December held further improvement in
Semien's condition; a second cardiologic stress test which showed
normal heart function and tests for hepatitis C were negative. In January 2002, Semien underwent spinal surgery to address her
continued low back pain. Two months later, Dr. Betman, her
primary care physician, echoed Dr. Te's July 2001 basic activity
assessment findings. In June, a colonoscopy showed general
intestinal health, and a test for hepatitis C showed no evidence
of the disease. In July, Semien received treatment from a Dr.
Nagle for carpal tunnel syndrome and examination for other arm
pain.

As of August, the end of Semien's two-year initial disability
period approached. At that time, one of her psychiatrists, Dr.
Skerchock, could not estimate when she would be able to return to
work. By October, Dr. Skerchock's assessment had changed
somewhat; she concluded that Semien could perform within an
adequate range of performance though probably not at her best
level for long periods. She stated that she expected that
Semien's condition would stabilize through further treatment and
medication. This same month, Semien was diagnosed with bone spurs
in her cervical spine.

In November 2002, with the end of the initial 24 months
imminent, Dr. Betman stated that Semien could gradually return to
work at BP Amoco. Dr. Koziol, another psychiatrist seeing Semien
concurred, reporting that Semien was stable and responding well
to treatment. Dr. Koziol also noted that Semien had clear
improvement in her energy level and planned to return to work in
January 2003. In slight contrast, Dr. Skerchock stated at this same time that Semien's return date was
"in negotiation" but that Semien could perform basic
administration or support functions as transitional duty if BP
Amoco offered such an option. On November 22, Semien's long-term
disability benefits were discontinued on the grounds that the
conditions that had given rise to Semien's initial disability
determination had been treated successfully and that she was able
to perform the duties of her prior occupation.

The following month, Drs. Te, Fintel, and Ruderman (a
hepatologist, gastroenterologist, and rheumatologist,
respectively) each gave the go-ahead for Semien to return to work
in their respective areas of treatment. Dr. Liu, who had
performed Semien's back surgery, stated that she should not
return to work because of her continuing pain and need for
narcotic medication. On January 7, 2003, LINA received Semien's
appeal of the decision to terminate her benefits.

Meanwhile, company medical staff were engaged in a review of
Semien's file to determine if she could indeed resume her former
duties. They concluded that she could not return to her previous
job and terminated her medical leave and her employment on
January 30, 2003. The next day, Dr. Skerchock wrote a letter to
Dr. Betman, stating that Semien was not employable at all, and
Dr. Betman wrote a letter addressed to "whom it may concern" that
also stated Semien was unable to sustain full time employment.
Semien supplied LINA with additional information about her
treatment, including the reports detailed above from Drs. Liu, Nagle, and
Koziol, for consideration in the appeal decision.

In May 2003, LINA submitted Semien's file to psychiatric and
physical medicine specialists for review and comment on her
ability to perform sedentary or light duty occupations. Both
doctors concluded that, although Semien could not return to her
former employment, there were jobs within her field not precluded
by her medical limitations. After receiving the reports of these
two physicians, LINA submitted them as the basis for a
"transferable skills assessment," whereby an outside company
compared Semien's reported limitations with an array of
occupations for which she was qualified and that approximated her
prior earning level. The results of this assessment stated that
Semien could work as a chemical engineer (a position she had held
for several years before becoming an environmental business
manager with BP Amoco), a chemical research engineer, or an
absorption and adsorption engineer. After receiving the reports
of the two physicians and the skills assessment, LINA denied
Semien's appeal and the denial of benefits became final.

Shortly thereafter, Semien filed the instant suit with LINA as
the sole defendant. Discovery proceeded, and the parties
ultimately found themselves before the court on a motion to
compel filed by Semien. Not long after the denial of that motion
on April 20, 2004, Semien amended her complaint to add the Plan
as a defendant. Her motion for summary judgment soon followed, which the defendants
countered with a cross-motion for judgment in their favor.

LEGAL STANDARD

&nbsp; Summary judgment is appropriate only if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In seeking a
grant of summary judgment the moving party must identify "those
portions of `the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This
initial burden may be satisfied by presenting specific evidence
on a particular issue or by pointing out "an absence of evidence
to support the non-moving party's case." Celotex,
477 U.S. at 325. Once the movant has met this burden, the non-moving party
cannot simply rest on the allegations in the pleadings, but "must
set forth specific facts showing that there is a genuine issue
for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context
of a motion for summary judgment is not simply a "metaphysical
doubt as to the material facts," Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); rather,
"[a] genuine issue exists when the evidence is such that a
reasonable jury could find for the non-movant," ...

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